Baires v. U.S.A

• Decision Date: 16 April 2010
• Docket Number: Civil Action No. 1:09cv155.,Criminal No. 1:05cr478.
• Parties: Wilfredo Montoya BAIRES, Petitioner,v.UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

707 F.Supp.2d 656

Wilfredo Montoya BAIRES, Petitioner,v.UNITED STATES of America, Respondent.

Criminal No. 1:05cr478.

Civil Action No. 1:09cv155.

United States District Court,

E.D. Virginia,

Alexandria Division.

April 16, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Wilfredo Montoya Baires, pro se.

ORDER

T.S. ELLIS, III, District Judge.

The matter is before the Court on the pro se petitioner's motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Petitioner, who was convicted of murder in aid of racketeering and related offenses and sentenced to a mandatory term of life imprisonment, asserts that his sentence should be vacated because his Sixth Amendment right to effective assistance of counsel was violated in several respects. As both parties have fully briefed the issues, and neither oral argument nor an evidentiary hearing would aid the decisional process,¹ the petition is ripe for disposition.

I. ²

Petitioner was charged in a superseding indictment alleging (i) murder in aid of racketeering in violation of 18 U.S.C. § 1959, (ii) conspiracy to commit murder in aid of racketeering in violation of 18 U.S.C. § 1959, (iii) possession of a firearm by an illegal alien in violation of 18 U.S.C. § 922, and (iv) illegal use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). Specifically, the indictment alleged that petitioner, an El Salvadoran national, was a member of MS-13, a nationwide crime gang with a significant presence in Northern Virginia. The indictment further charged that petitioner and two others, Freddy Escobar and Wilmer Lopez-Lopez, conspired to kill a fellow MS-13 member, Jose Escobar, as a result of an intra-gang feud, and on August 11, 2004, petitioner shot and killed Escobar. Petitioner was appointed two defense attorneys and pled not guilty.³ At the time he was arrested, in November 2005, petitioner was not advised of his right of consular notification, nor did the arresting agents notify the El Salvadoran Embassy of his arrest. Some two months later, in January 2006-eight months prior to trial-the Office of the United States Attorney notified the El Salvadoran Embassy of petitioner's arrest and promptly informed petitioner's counsel that it had done so. There is no indication that the El Salvadoran government responded, offered assistance, or opposed petitioner's continued detention.

At trial, petitioner, by counsel, objected to the government's introduction of several MS-13 members, including Freddy and Raul Escobar, as witnesses. The government contended that it needed to call the witnesses in order to establish that racketeering activities occurred and were related to the murder. Petitioner argued that the evidence was cumulative. The objection was overruled and the testimony was allowed. On cross-examination, petitioner's counsel thoroughly examined the witnesses' potential biases, including Freddy Escobar's agreement to plead guilty to one count and to testify against petitioner in exchange for dismissal of the other two counts with which he was charged. Because Freddy and Raul Escobar spoke only Spanish, some confusion resulted when defense counsel proceeded with cross-examination by making statements and waiting for the witness to confirm or deny the veracity of those statements. Thus, the Court instructed defense counsel to ask the witnesses questions-rather than make statements-in order to ameliorate the interpretive problem. Only the form-and not the scope-of the examination was limited by this instruction.

When the government rested, petitioner's counsel moved for a judgment of acquittal pursuant to Rule 29, Fed.R.Crim.P., on the ground that the government had failed adequately to show that the murder was in aid of racketeering activity. The motion was denied in a bench ruling that the government had adduced sufficient evidence for a reasonable jury to conclude that the murder was committed in aid of racketeering activity. Petitioner's counsel then indicated that petitioner would not testify in his own behalf. The Court thereupon undertook to examine petitioner in order to ascertain whether his decision not to testify was knowing and voluntary. The voir dire included the following exchange:

THE COURT: Now, have you discussed whether or not you should testify with your attorneys?

THE DEFENDANT: Yes.

THE COURT: And do you understand that you have a right not to testify, if you choose not to do so?

THE DEFENDANT: Yes.

THE COURT: And do you understand that you have right [sic] to testify, if you chose [sic] to do so?

THE DEFENDANT: Yes.

THE COURT: Is there anything that you don't understand about your right to testify or not to testify, and what the consequences are of those choices?

THE DEFENDANT: Yes.

THE COURT: What is it you don't understand?

THE DEFENDANT: No, everything my attorneys told me is quite clear.

THE COURT: Are you fully satisfied with the advice and counsel you have received from them?

THE DEFENDANT: Yes.

Transcript of Voir Dire, Sept. 26, 2006, at 5-6. The Court concluded, with no objection from either party, that petitioner's decision not to testify was, in fact, knowing and voluntary. Accordingly, he did not testify at trial.

Upon conclusion of the live trial testimony, proposed jury instructions were circulated and argument was heard on the parties' objections. Neither party objected to the use of a routine instruction that jurors draw no adverse inference from petitioner's decision not to testify at trial. Accordingly, the instruction was given. During deliberation, the jury asked the Court, by a written note, to define the phrase “heat of passion” as used in the instructions. In response, the Court provided the jury with a definition of the phrase, and further repeated to the jury the definition of “malice.” Petitioner's counsel twice objected to re-reading the “malice” definition because it went beyond the scope of the jury's question and would be prejudicial to petitioner. The objections were overruled, and the malice definition was re-read to the jury. The jury convicted petitioner on all counts.

The probation officer prepared a presentence investigation report (“PSR”) and provided it to defense counsel in compliance with Rule 32, Fed.R.Crim.P. On the morning of the sentencing hearing, petitioner's counsel requested a brief continuance to translate and discuss the PSR with petitioner. The request was granted. A few hours later, the hearing was reconvened, and both of petitioner's lawyers represented that they had discussed the PSR with petitioner. Upon being asked by the Court, petitioner represented that he had received an adequate opportunity to have the PSR translated into Spanish and to discuss it with his lawyers “[a] few minutes ago in the cell block.” Transcript of Sentencing Hearing, Dec. 15, 2006, at 5. Accordingly, the Court concluded that petitioner had reviewed and discussed the PSR with counsel as required by Rule 32. Petitioner's counsel had only one minor correction to the PSR-it incorrectly stated petitioner's birthday as March 5 instead of March 4. The correction was adopted and sentencing proceeded. Thereafter, petitioner was sentenced to a mandatory sentence of life imprisonment on the murder count; concurrent ten-year sentences on the conspiracy and alien in possession counts; and a consecutive ten-year sentence on the § 924(c) count.

Petitioner, by counsel, timely appealed his conviction and sentence to the Court of Appeals for the Fourth Circuit, where he advanced three arguments, namely (i) that the danger of unfair prejudice outweighed the probative value of government evidence of racketeering acts committed by MS-13 in violation of Rule 403, Fed.R.Civ.P., (ii) that his Sixth Amendment confrontation right was violated because his cross-examination of government witnesses was materially limited by the Court's instruction to counsel, and (iii) that the murder count's statutorily mandated life sentence is unconstitutional under United States v. Booker, 543 U.S. 220, 234, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The Fourth Circuit rejected all three arguments and affirmed petitioner's conviction and sentence by unpublished opinion. See United States v. Baires, 254 Fed.Appx. 196 (4th Cir.2007).

Thereafter, on February 11, 2009, petitioner, proceeding pro se, filed his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. After being granted two extensions of time, he filed his memorandum in support of his motion on June 8, 2009. In his memorandum, petitioner asserts that his Sixth Amendment right to effective assistance of counsel was violated on seven occasions during pretrial proceedings, during the course of the trial, and on appeal. Specifically, petitioner alleges that his counsel were ineffective for the following reasons:

(i) for failing to notify petitioner of his rights of consular notification under the “Geneva Convention [sic]”; ⁴

(ii) for failing to inform petitioner of his constitutional right to testify in his own behalf and for failing to explain to petitioner why he should not testify at trial;

(iii) for failing to object to an instruction that the jury not draw an adverse inference from petitioner's decision not to testify at trial;

(iv) for failing adequately to cross-examine Freddy Escobar, a government witness, concerning his alleged biases and motives;

(v) for failing, at trial and on appeal, to object to the Court's allegedly erroneous response to a jury question;

(vi) for failing to challenge adequately the sufficiency of the evidence of a racketeering enterprise and of a pattern of racketeering activities; and

(vii) for failing to request more time in order for petitioner to review the PSR prior to sentencing.

For the reasons set forth herein, petitioner's constitutional right to effective assistance of counsel was not violated and accordingly, petitioner's motion to vacate must be denied.

II.

A petitioner proceeding under § 2255 must show that his sentence...